Normally a Florida resident is free to dispose of his or her property through a will as they see fit. But there are special rules that apply to a person's primary residence or “homestead.” The Florida Constitution actually restricts the “devise”–or transfer by will–of a homestead if the owner has a surviving spouse or minor child. Instead, Florida law directs the surviving spouse shall have a “life estate” in the homestead, and upon his or her death the property shall go to the children. Alternatively, the surviving spouse can choose to take a one-half interest in the homestead outright, with the other half divided among the children.
Florida Legislature Clarifies Law Governing Waiver of Homestead Rights
Of course, Section 732.702 of the Florida Statutes provides that a spouse can “wholly or partly” waive homestead rights at any time. Such waiver must be done in writing in the presence of two witnesses. The waiver itself may take many forms, such as a clause in a prenuptial agreement or a separate contract signed after marriage.
The Florida Legislature recently added new language, to be codified as Section 732.7025, that further clarifies the law regarding waives. This new section, which takes effect July 1, states a spouse can waive his or her constitutional homestead rights by including the following language in a deed: By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.
The Legislature's amendment was prompted by recent Florida court decisions addressing the subject of whether a spouse could waive homestead rights via a deed. A state Senate report said these court cases were “very fact-specific” and did not provide a “consistently clear” picture of “when a knowing and intelligent waiver has occurred.” By adopting a clear legislative standard, the Senate said it hoped to “reduce the expense of litigation, reduce court time dedicated to resolving these legal conflicts, and reduce the chance that a waiver in a deed is made by mistake or misunderstanding.”
Need Help Understanding the Homestead Exemption?
It should also be understood the new legislation is quite limited in scope. A spouse who waives their homestead rights for purposes of inheritance does not necessarily do so in other legal contexts. For instance, Florida's homestead exemption also protects a subject property against unsecured creditor claims. The new legislation makes it clear, however, that a waiver of inheritance rights does not affect the protection of the property against creditor claims.
Keep in mind this only applies to unsecured claims. A mortgage, deed or trust, or other creditor claim secured by homestead property is still enforceable regardless of any homestead rights a spouse may possess. And the homestead exemption only applies to “devises” that take effect at the time of the owner's death. A married person can still gift or sell their house during their lifetime without spousal consent, assuming they have sole ownership rights.
If you have any questions about how the new law may affect you, or if you want to know more about Florida's homestead rules, a qualified Fort Myers estate planning attorney can help. Call the Kuhn Law Firm, P.A., at 239-333-4529 to schedule a consultation with a member of our estate planning team today.